About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 27
|
|
Changing Tides 17 (Pty) Ltd N.O v Meikle and Another (1156/18P) [2019] ZAKZPHC 27; 2020 (5) SA 146 (KZP) (16 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
REPORTABLE
KWAZULU-NATAL, PIETERMARITZBURG DIVISION
CASE NO: 1156/18P
CHANGING TIDES 17 (PTY) LTD
N.O.
Plaintiff
and
ANDRE ANTHONY
MEIKLE
First Defendant
TRACEY ANN
MEIKLE
Second Defendant
Date: 16 May 2019
JUDGMENT
VAN
ZYL, J
:-
[1] Plaintiff
instituted action against the defendants, apparently a married
couple, based upon their
alleged failure to maintain payments in
respect of a home loan, secured by a mortgage bond in plaintiff’s
favour over their
residential property. By way relief the plaintiff
claimed in its summons payment of the outstanding balance, interest
thereon,
costs and an order declaring the mortgaged property
specially executable.
[2] Following
service of the summons, the defendants entered appearance to defend
and the plaintiff
gave notice of its intention to apply for summary
judgment. However, before the application for summary judgement could
be heard
the parties entered into an agreement whereby the defendants
agreed to a revised payment schedule, confessed to judgment in terms
of Rule 31(1), as well as an arrangement whereby the confession would
not be used and the action would be stayed, subject to their
compliance with the agreed arrangements. In the result the summary
judgment application was adjourned
sine die
with the
defendants to pay the costs occasioned by the adjournment.
[3] Plaintiff now
seeks judgment against the defendants in terms of their confessions
to judgment
on the grounds of their failure to adhere to the revised
payment schedule, as agreed. In so doing the plaintiff relies upon
the
confessions to judgment as executed by the defendants as part of
the settlement agreement.
[4] When the
matter initially came before me in chambers I was concerned that the
plaintiff sought,
in addition to a money judgment, also an order
declaring the residential property of the defendants specially
executable.
[5] In the result
I directed an enquiry to the plaintiff’s attorneys, the
relevant portions
of which read as follows:-
“
[3]
Prima facie whilst Rule 31(1)(c) is permissive of a Chambers
application, leave to execute against immovable
residential property
is governed by Rule 46A which sets out in detail what a plaintiff
needs to comply with before the Court will
consider such leave.
[4]
Plaintiff is invited to make written submissions, supported by
authority, should it be so inclined,
in support of the contention
that leave to execute is capable of being granted in Chambers in
conjunction with a money judgment
in terms of Rule 31(1)(c).”
[6] In response
the plaintiff’s attorneys have now made written representations
seeking to persuade
me that such a declaration of the property as
specially executable should be granted in chambers together with and
as part of the
judgment on confession.
[7] Whilst Rule
31(1) does not provide for an affidavit in support of the request for
judgment upon
confession, a sound practice has evolved in terms of
which the plaintiff’s attorney usually files an accompanying
affidavit
recording the failure of the defendant to adhere to the
settlement arrangement which gave rise to the confession to judgment
being
submitted to court.
[8]
What the plaintiff seeks to achieve in the present matter is to
combine the requirements of Rule
46A as applicable to matters where
execution is to be levied against residential immovable property with
the procedure envisaged
in Rule 31(1)(c) where a defendant’s
confession to judgment is submitted
through
the registrar to a judge in chambers for judgment according to such
confession.
[9] In so doing the plaintiff seeks to
justify this abbreviated procedure by submitting that legal
costs for
which the defendants would ultimately be held liable, would be saved
thereby. This may be so but, taken to its logical
conclusion, then
savings can be achieved in all matters in respect of which Rule 46A
applies by eliminating the need for procedures
in open court.
[10] The requirements of Rule 46A are clearly aimed
at protecting the constitutional right to adequate housing
enjoyed by
individual natural persons. Section 26(3) of the Constitution, 1996
provides that-
“
26
Housing
(1)
…
(2)
…
(3)
No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all
the relevant
circumstances. No legislation may permit arbitrary evictions.
”
[11]
Enabling a lay litigant to appear and make representations to the
presiding officer in a court of law tasked
with the decision whether
or not to grant an order which would imperil the immovable property
upon which the home of the litigant
is situated, is of significant
importance. In addition section 34 of the Constitution affords all
persons the right to “
a
fair public hearing before a court
”
.
[12] Rule 46A is aimed at facilitating the access
to court of a litigant, whose home is under threat, as well
as
enabling the court in arriving at a just decision regarding the
issue. For instance, Rule 46A(3) deals with notice of the intended
court proceeding to the ‘
judgment debtor
” and all
other parties who may be affected and requires as a rule that such
application be served upon the judgment debtor
personally. As such
the costs occasioned by the procedures contemplated in Rule 46A have
been factored into the proceedings contemplated
in the Rules of
Court.
[13] It is, in my view, entirely inconsistent with
both the Constitutional imperatives and the Rules of Court,
to
telescope into a single procedure a confession to judgment which, by
way of exception, may be dealt with in chambers in the
absence of the
parties, with a proceeding which by its very nature requires to be
dealt with in open court after due notice to
the affected persons who
may then appear and place facts or make representations to the court
regarding the fate of the residential
property concerned.
[14] In the present matter the plaintiff’s
attorneys, in response to my enquiry submitted that these two
procedures should be dealt with as one in chambers as a cost saving
measure. Following my enquiry the “
Application for
Judgment on Confession
” was served by the Sheriff upon the
first defendant personally and upon the second defendant in her
absence upon the first
defendant as the person in charge of her
premises. The returns of service have been included in the papers now
before me.
[15] The plaintiff’s attorneys, in their
written representations in resubmitting the papers seeking judgment
by confession, also submitted that the combined procedure of dealing
simultaneously with a money judgment and the declaration of
the
bonded property as specially executable, was followed in the Gauteng
Local Division, Johannesburg on the basis that the issues
of
liability and execution should be dealt with as one (ABSA Bank Ltd v
N D Sawyer (2018/17056) [2018] ZAGPJHC 662 (14 December
2018) at para
14). That was, however, a matter where summary judgment was under
consideration in a hearing in open court and is
no authority, in my
view, for satisfying the requirements of Rule 46A in chambers.
[16] In any event, by service of the application
for judgment by confession upon the defendants there is nothing
to
indicate to them, as lay persons, how they are to set about
adequately placing before the Judge in chambers any facts or make
representations regarding the fate of the residential property
concerned. Such service, in the circumstances, is therefore
ineffective
in satisfying the requirements of Rule 46A.
[17] After due consideration I am of the view that
it is undesirable, impractical and not in the interests of
justice to
try and combine a judgment by confession in terms of Rule 31(3) with
an application to declare an immovable residential
property
executable in compliance with the requirements of Rule 46A.
[18] In the circumstances I am therefore prepared
to grant the money judgment by confession in chambers, but
the relief
sought for the declaration of the immovable property as executable
will be postponed
sine die
and the plaintiff, if so disposed,
may then in due course apply for such a declaration by way of
application in open court and
in due compliance with the legal
requirements for such relief.
[19] As regards the costs incurred in delivering
the extensive affidavit deposed to by Mr Mlamuli Jimmy Duma
on 12
March 2019 in support of the application for judgment by confession
for declaring the immovable property executable, as well
as the costs
incurred in applying for such relief and in responding to my enquiry
in this regard, I see no justification for imposing
that burden upon
the defendants.
[20] In the result the following order is made in
Chambers:
a.
Judgment by confession in terms of
Rule 31(3) is granted in favour of the plaintiff against the
defendants for:-
i.
Payment in the sum of R1 032 575-51.
ii.
Interest thereon at the rate of
9,80% per annum, compounded monthly in arrear from 13 December 2017
to date of payment.
iii.
Costs of suit on the attorney and
client scale, subject to the terms of paragraph (c) of this order
appearing below.
b.
The relief sought in para (c) of the
application for judgment by confession dated 19 March 2019
(corresponding with that claimed
in prayer (c) of the particulars of
plaintiff’s claim) is postponed
sine
die
to be dealt with in open court in
compliance with the requirements
inter
alia
of Rule 46A.
c.
The costs incurred by the plaintiff
in delivering the extensive affidavit deposed to by Mr Mlamuli Jimmy
Duma on 12 March 2019 in
support of the application for judgment by
confession for declaring the immovable property executable, as well
as the costs incurred
in applying for such relief and in responding
to the Court’s enquiry in this regard, including service by the
Sheriff upon
the defendants on 4 April 2019, shall be paid by the
plaintiff and may not be recovered from the defendants.
VAN ZYL, J.